Citation Nr: 0523683
Decision Date: 08/29/05 Archive Date: 09/09/05
DOCKET NO. 02-05 163A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
M. W. Kreindler, Associate Counsel
INTRODUCTION
The veteran had active duty in recognized guerilla service
from January to October 1945, and Regular Philippine Army
(RPA) service from October 1945 to March 1946. He died in
November 2000. The appellant is the veteran's widow.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a December 2001 rating decision of the
Department of Veterans' Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines.
The Board concluded that additional medical expertise was
needed to render a decision on this claim and in December
2004 requested a medical opinion from the Veterans Health
Administration (VHA) in accordance with 38 C.F.R. §
20.901(a). In conformance with 38 C.F.R. § 20.903, the
appellant was notified of the VHA opinion in a May 2005
letter and given 60 days to submit any additional evidence or
argument in response to the opinion. As the appellant has
not submitted any additional evidence, the Board will
proceed. The Board notes that the United States Court of
Appeals for the Federal Circuit recently upheld the authority
of the Board to obtain a VHA opinion and further clarified
that the Board could also consider such an opinion in the
first instance without returning the case to the RO for
preliminary review. Disabled American Veterans, et. al v.
Secretary of Veterans Affairs, 04-7117, -7128 (Fed. Cir. Aug.
3, 2005).
FINDINGS OF FACT
1. The veteran died in November 2000 of end-stage renal
disease, arterioscleriotic cardiovascular disease, congestive
heart failure, hypertension, chronic obstructive pulmonary
disease, pulmonary tuberculosis, prepyloric ulcer, gastric
erosion with upper gastrointestinal series bleeding, and
anemia.
2. Disabilities associated with the veteran's death were not
manifested during the veteran's period of active duty service
or for many years after his discharge from service, nor were
end-stage renal disease, arterioscleriotic cardiovascular
disease, congestive heart failure, hypertension, chronic
obstructive pulmonary disease, pulmonary tuberculosis,
prepyloric ulcer, gastric erosion with upper gastrointestinal
series bleeding, and anemia otherwise related to such service
or to a disability related to service.
CONCLUSION OF LAW
The veteran's death was not caused by, or substantially or
materially contributed to by, a disability incurred in or
aggravated by his active duty service. 38 U.S.C.A. §§ 1310,
5107 (West 2002); 38 C.F.R. § 3.312 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), which has been
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a). Under the VCAA, VA has a duty to notify the
appellant of any information and evidence needed to
substantiate and complete a claim, and of what part of that
evidence is to be provided by the claimant and what part VA
will attempt to obtain for the claimant. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002).
The Court's decision in Pelegrini v. Principi, 17 Vet. App.
412 (2004), held, in part, that a VCAA notice, as required by
38 U.S.C.A. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. This decision has since
been replaced by Pelegrini v. Principi, 18 Vet. App. 112
(2004), in which the Court continued to recognize that
typically a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, VA satisfied its
duties to the appellant in a VCAA letter issued in April
2001. The letter predated the December 2001 rating decision.
See id. The RO has generally advised the appellant to submit
any evidence in support of her claim which she had in her
possession, and that they would assist her in obtaining any
evidence she was not able to obtain on her own. Id.; but see
VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The April
2001 VCAA letter collectively with the April 2002 statement
of the case have clearly advised the appellant of the
evidence necessary to substantiate her claim.
The Board finds that VA has complied with all assistance
provisions of VCAA. Regarding the issue being decided on
appeal, the evidence of record contains the veteran's post-
service medical records. There is no indication of relevant,
outstanding records which would support the appellant's
claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).
The evidence of record contains a VA opinion as to the issue
being decided on appeal. Additionally, the appellant
submitted private opinions on the matter. For all the
foregoing reasons, the Board concludes that VA's duties to
the appellant have been fulfilled with respect to the issue
on appeal.
I. Factual Background
At the time of the veteran's death in November 2000, service
connection was in effect for scars, residuals of gunshot
wound to the left leg, with injury to muscle group XI, with
an old, healed malunited fracture of the tibia, and
shortening of the left lower extremity, with loss of motion
of the ankle rated 20 percent disabling, and scars, residuals
of gunshot wound to the right leg, with injury to muscle
group XI rated zero percent disabling.
Service medical records dated in September through November
1945 reflect treatment related to his gunshot wounds to the
left and right legs. On physical examination in October
1945, his lungs, vascular system, genitor-urinary, anus and
rectum, glandular system were clinically evaluated as normal.
With regard to the heart, the examiner noted that it was not
enlarged, it was regular in rhythm, and no murmurs were
detected.
In February 1946, the veteran executed an Affidavit for
Philippine Army Personnel and did not document any wounds or
illness incurred from December 1941 to date of return of
military control.
As noted, the veteran died in November 2000. Two
Certificates of Death were completed with regard to the
veteran. One death certificate reviewed and signed by Dr.
Maribel R. Lazo reflects the antecedent cause of death as
"chronic renal failure" and the underlying causes as
"kidney stones, heart ailment (?)." Another death
certificate also reviewed and signed by Dr. Lazo reflects the
immediate cause of death as cardio-respiratory arrest, the
antecedent causes as congestive heart failure and renal
failure 5 years, and the underlying causes as prepyloric
ulcer with gastric erosions, arteriosclerotic cardiovascular
disease, left ventricular hypertrophy not in heart failure,
"CFC IIB," pneumonia, psoriasis, and pulmonary
tuberculosis, and other significant conditions contributing
to death as residual gunshot wound to left leg.
In May 2001, Dr. Virgilio B. Rodriguez, M.D., issued a
medical opinion. He had treated the veteran for different
illnesses or diseases on and off until shortly before his
death in November 2000. Dr. Rodriguez stated that he
remembered that the veteran was a chronic cigarette smoker
since he became a soldier during the Japanese occupation in
the Philippines. Even when he was seriously ill he was still
smoking cigarettes against medical advice. His different
illnesses were hypertensive cardiovascular disease, pulmonary
tuberculosis, gastric ulceration, chronic bronchitis, all of
which were caused by his smoking during and after his active
service.
Dr. Rodriguez offered a further opinion in August 2001. He
treated the veteran from 1962 to 1984. The veteran learned
to smoke in service. Consequently, he gradually contracted
chronic obstructive pulmonary disease, chronic bronchitis,
pulmonary tuberculosis, arteriosclerotic cardiovascular
disease and hypertension; hypertensive cardiovascular
disease, gastric ulceration with bleeding for which he was
rushed to the Veterans Memorial Hospital and received a blood
transfusion. Dr. Rodriquez opined that all of the major
diseases which hastened his death were attributable to the
ill-effects of cigarette smoking during most of the veteran's
lifetime and while in service.
Correspondence from Dr. Lazo dated in August 2001, stated
that he treated the veteran from 1994 to November 2000, and
the veteran had suffered from a severe case of psoriasis, and
that he was passing out dark colored blood in stools.
However, no medical records were available.
In March 2005, a VA physician offered an opinion as to the
cause of the veteran's death. The examiner provided a
summary of the medical evidence of record. The examiner
noted that the gunshot wound to the right leg was penetrating
through and through. The gunshot wound to the left leg
resulted in a compound fracture of distal 1/3 tibia fibula,
treated by surgical removal of 45 caliber bullet foreign
body, and plaster casts. There was malunited healing of
tibia, fibula. The veteran underwent a VA examination in
October 1977. The gunshot wound to the right leg was healed
with scarring to muscle group XI, and the gunshot wound to
the left leg resulted in scarring to muscle group XI, the
left leg was 1 inch shorter, and he walked with a left limp.
There was loss of motion to the left ankle. The examiner
also noted the finding of an abnormal chest x-ray in April
1978 reflecting pulmonary infiltrations, fibrotic, bilateral
upper lobes, and the etiology was undetermined. The examiner
noted that such diagnoses were rendered 22 years after
separation from service, and there were no medical records
reflecting any follow-up, work-up, or diagnostic evaluations.
The VA examiner acknowledged the opinions proffered by Dr.
Rodriguez, and the correspondence from Dr. Lazo. The VA
examiner stated that although Dr. Rodriguez claimed that he
treated the veteran from 1962 to shortly before his death for
several illnesses to include hypertensive cardiovascular
disease, peptic gastric ulceration with bleeding, pulmonary
tuberculosis, chronic bronchitis, and chronic obstruct
pulmonary disease, the medical records noted only treatment
for gastric hyperacidity in 1963 and hypertension in 1967.
Additional medical documentation were documents of minor
illness such as bronchitis, pharyngitis, and coryza.
The examiner also summarized the veteran's medical records
from the Veterans Memorial Medical Center for the periods
November 1996 through October 2000. In reviewing the medical
records, the VA examiner noted that the veteran was admitted
once or twice per year from 1996 to 1999 for recurrent
diagnosis of arteriosclerotic cardiovascular disease, left
ventricular hypertrophy, prepyloric ulcers, pneumonia,
pulmonary tuberculosis, and psoriasis. From January to
October 2000, the frequency of hospital admissions increased
to monthly. Commonly identified throughout the admissions
was predominant recurrent diagnoses of arteriosclerotic
cardiovascular disease, prepyloric ulcers, gastric erosion,
upper gastrointestinal series bleeding, anemia, hypertension
in the earlier years, and then new diagnoses of end-stage
renal disease due to hypertensive nephrosclerosis started on
peritoneal dialysis, peritonitis and encephalopathy from
January 2000. The VA examiner noted that as the severity of
his illnesses increased, his condition deteriorated. The
veteran died in November 2000, unattended by a physician or
medical providers.
The examiner, then, acknowledged the two Certificates of
Death. The VA examiner opined that since there were no
records of the circumstances, medical complaints, signs and
symptoms surrounding the veteran's death, the veteran's cause
of death was due to end-stage renal disease, arteriosclerotic
cardiovascular disease, congestive heart failure,
hypertension, chronic obstructive pulmonary disease,
pulmonary tuberculosis, prepyloric ulcer, gastric erosion
with upper gastrointestinal series bleeding, and anemia. The
examiner stated that these diagnoses were the "burdens of
his life," especially during the last few months prior to
his death. They severely affected his health, deteriorated
his condition, and caused multi-organ failure at the end
leading to his death. The examiner opined that the veteran's
service medical records did not documents any of the causes
of death. The earliest mention of gastric hyperacidity and
hypertension were in 1963 and 1967, respectively. The other
diagnoses were provided in statements completed by Dr.
Rodriguez and Dr. Lazo, however, there were no accompanying
medical records. The causes of death were repeatedly
documented in the medical records from Veterans Memorial
Medical center from November 1996 to October 2000. The VA
examiner also addressed Dr. Rodriguez's opinion regarding the
veteran's cigarette smoking. The VA examiner opined that
smoking cigarettes can but does not definitely cause
hypertension, chronic obstructive pulmonary disease,
cardiovascular disease, prepyloric ulcer, gastric ulcer, or
pulmonary tuberculosis in smokers. Cigarette smoking will
increase the risk of contracting these diseases, but does not
definitely cause them in all smokers. The examiner also
opined that the veteran's death was not caused or contributed
to by the veteran's service-connected residuals of gunshot
wounds. The examiner opined that there is no causal or
contributory relation of these musculoskeletal injuries to
the veteran's cause of death.
II. Criteria & Analysis
The appellant is claiming entitlement to service connection
for the cause of the veteran's death. 38 U.S.C.A. § 1310.
The cause of a veteran's death will be considered to be due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. 38 C.F.R. § 3.312(a). This
question will be resolved by the use of sound judgment,
without recourse to speculation, after a careful analysis has
been made of all the facts and circumstances surrounding the
death of the veteran, including, particularly, autopsy
reports. 38 C.F.R. § 3.312(a). For a service-connected
disability to be considered the principal or primary cause of
death, it must singly, or with some other condition, be the
immediate or underlying cause, or be etiologically related
thereto. 38 C.F.R. § 3.312(b). In determining whether a
service-connected disability contributed to death, it must be
shown that it contributed substantially or materially; that
it combined to cause death; that it aided or lent assistance
to the production of death. It is not sufficient to show
that it casually shared in producing death, but rather it
must be shown that there was a causal connection. 38 C.F.R.
§ 3.312(c)(1).
The Board initially notes that the veteran's death was caused
by end-stage renal disease, arterioscleriotic cardiovascular
disease, congestive heart failure, hypertension, chronic
obstructive pulmonary disease, pulmonary tuberculosis,
prepyloric ulcer, gastric erosion with upper gastrointestinal
series bleeding, and anemia. Applicable law provides that
service connection will be granted for disability resulting
from an injury suffered or disease contracted in line of
duty, or for aggravation of a preexisting injury suffered or
disease contracted in line of duty, in the active military,
naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303. That an injury occurred in service alone is not
enough; there must be chronic disability resulting from that
injury. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b). Additionally, for
veteran's who have served 90 days or more of active service
during a war period or after December 31, 1946, certain
chronic disabilities, such as malignant tumors,
cardiovascular-renal disease, including hypertension, and
anemia are presumed to have been incurred in service if
manifest to a compensable degree within one year of discharge
from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307,
3.309. Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
As noted, a review of the record reveals that the veteran's
death was caused by end-stage renal disease,
arterioscleriotic cardiovascular disease, congestive heart
failure, hypertension, chronic obstructive pulmonary disease,
pulmonary tuberculosis, prepyloric ulcer, gastric erosion
with upper gastrointestinal series bleeding, and anemia, in
November 2000, over 54 years after discharge from service.
At that time, service connection was not in effect for any of
these disabilities. The VA examiner reviewed the veteran's
service medical records and noted that the records did not
document any of the causes of death. As noted by the VA
examiner the earliest discernible diagnosis of gastric
hyperacidity was in 1963, approximately 17 years after
separation from service, and hypertension was diagnosed in
1967, approximately 21 years after separation from service.
There are no medical records to support diagnoses of the
other contributing disabilities until approximately 1996,
when the veteran sought treatment at the Veterans Memorial
Medical Center. At that time, initially the veteran was
admitted once or twice a year in 1996 through 1999 for
arteriosclerotic cardiovascular disease, left ventricular
hypertrophy, prepyloric ulcers, pneumonia, pulmonary
tuberculosis, and psoriasis. The frequency and duration of
his hospitalization then increased in 2000, and he was
admitted for arteriosclerotic cardiovascular disease,
prepyloric ulcers, gastric erosion, upper gastrointestinal
series bleeding, anemia, hypertension, and end-stage renal
disease. The examiner opined that as the severity of his
illnesses increased, his condition deteriorated. Based on
the following, there is no medical evidence to support that
the causes of death manifested in service, or within the
presumptive periods.
The veteran's treating physician, Dr. Rodriguez, has opined
that the veteran's disabilities which ultimately caused his
death, were as a result of his cigarette smoking that he
began in service. Prior to June 10, 1998, secondary service
connection for disability attributable to tobacco use
subsequent to military service could be established based on
nicotine addiction which had arisen in service, if the
addiction was the proximate cause of the disability. See
VAOPGCPREC 19-97 (May 13, 1997). On July 22, 1998, the
Internal Revenue Service Restructuring and Reform Act was
enacted. That law added 38 U.S.C.A. § 1103, which states
that a veteran's disability or death shall not be considered
to have resulted from personal injury suffered or disease
contracted in the line of duty in the active military, naval,
or air service for purposes of this title on the basis that
it resulted from injury or disease attributable to the use of
tobacco products by the veteran during the veteran's service.
By its terms, 38 U.S.C.A. § 1103 is applicable to claims
filed after June 9, 1998. See also 38 C.F.R. § 3.300. As
the appellant's claim was filed in December 2000, service
connection on the basis of tobacco use in service is
therefore precluded as a matter of law. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).
At the time of the veteran's death, service connection was in
effect for residuals of gunshot wounds to his left and right
legs, however, there is no evidence to support that such
disabilities caused the veteran's death. One of the
veteran's Certificates of Death stated that residuals of the
gunshot wound to the left leg was a significant condition
contributing to death. There is no medical evidence of
record, however, to support such causation, and, in any
event, such documentation does not support a finding that any
such residuals contributed substantially or materially to
cause the veteran's death. The VA examiner reviewed the
entirety of the evidence of record, and concluded that the
cause of the veteran's death was due to end-stage renal
disease, arterioscleriotic cardiovascular disease, congestive
heart failure, hypertension, chronic obstructive pulmonary
disease, pulmonary tuberculosis, prepyloric ulcer, gastric
erosion with upper gastrointestinal series bleeding, and
anemia. Moreover, upon review of the entire evidence of
record, the VA physician, opined that the veteran's cause of
death was not due to residuals of gunshot wounds.
Specifically, the examiner opined that there is no causal or
contributory relation of the veteran's musculoskeletal
injuries sustained in service to his cause of death. The
Board accepts the VA physician's opinion as being the most
probative medical evidence on the subject, as it was based on
a review of all historical records and it contains detailed
rationale for the medical conclusions. See Boggs v. West, 11
Vet. App. 334 (1998). The Board assigns great probative
weight to this medical opinion, as it was based on extensive
review of the veteran's medical records. Moreover, the VA
physician provided precise reasons and bases for his
conclusions and made specific reference to the pertinent
evidence. The evidence of record contains no competent or
probative evidence to rebut this persuasive medical opinion.
In reaching this decision, the Board has considered the
appellant's assertions as to the cause of the veteran's
death. Although the Board can sympathize with the
appellant's plight, she is not competent to provide an
opinion requiring medical knowledge, such as a diagnosis of
current disability. Espiritu, supra.
The preponderance of the evidence is against the appellant's
claim of service connection for the cause of the veteran's
death. Consequently, the benefit-of-the-doubt rule does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
The appeal is denied.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs